Chapter 908

908.03 Annotation Expanding Wisconsin’s Approach to the Business Records Exception. Whitehead. 98 MLR 1505 (2015).

908.03 Annotation Medical Records Discovery in Wisconsin Personal Injury Litigation. Pokrass. 1974 WLR 524.

908.03 Annotation Children’s Out-of-Court Statements. Anderson. WBB Oct. 1974.

908.03 Annotation Evidence review: Past recollection refreshed v. past recollection recorded. Fine. WBB Mar. 1984.

908.03 Annotation Evidence review: Business records and government reports: Hearsay Trojan horses? Fine. WBB Apr. 1984.

908.03 Annotation Hearsay and the Confrontation Clause. Biskupic. Wis. Law. May 2004.

908.03 Annotation Thinking Outside the “Business Records” Box: Evidentiary Foundations for Computer Records. O’Shea. Wis. Law. Feb. 2008.

908.03 Annotation Business Records and Self-authentication: Together at Last. Hanson. Wis. Law. Sept. 2010.

908.03 Annotation The Ancient-Document Rule: Ancient Is Not as Old as You Think. Aquino. Wis. Law. Feb. 2012.

908.04 908.04 Hearsay exceptions; declarant unavailable; definition of unavailability.

908.04(1) (1) “Unavailability as a witness” includes situations in which the declarant:

908.04(1)(a) (a) Is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or

908.04(1)(b) (b) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the judge to do so; or

908.04(1)(c) (c) Testifies to a lack of memory of the subject matter of the declarant’s statement; or

908.04(1)(d) (d) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

908.04(1)(e) (e) Is absent from the hearing and the proponent of the declarant’s statement has been unable to procure the declarant’s attendance by process or other reasonable means.

908.04(2) (2) A declarant is not unavailable as a witness if the declarant’s exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant’s statement for the purpose of preventing the witness from attending or testifying.

908.04 History History: Sup. Ct. Order, 59 Wis. 2d R1, R302 (1973); 1991 a. 32.

908.04 Annotation Adequate medical evidence of probable psychological trauma is required to support an unavailability finding based on trauma, absent an emotional breakdown on the witness stand. State v. Sorenson, 152 Wis. 2d 471, 449 N.W.2d 280 (Ct. App. 1989).

908.04 Annotation The state must show by a preponderance of the evidence that the declarant’s absence is due to the defendant’s misconduct under sub. (2). State v. Frambs, 157 Wis. 2d 700, 460 N.W.2d 811 (Ct. App. 1990).

908.04 Annotation When testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. “Testimonial statements” applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial and to police interrogations. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

908.04 Annotation A finding of unavailability of a witness due to mental illness, made on the basis of a confused and stale record, deprived the defendant of the right to confront witnesses, but the error was harmless. Burns v. Clusen, 599 F. Supp. 1438 (1984).

908.04 Annotation Hearsay and the Confrontation Clause. Biskupic. Wis. Law. May 2004.

908.045 908.045 Hearsay exceptions; declarant unavailable. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

908.045(1) (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another proceeding, at the instance of or against a party with an opportunity to develop the testimony by direct, cross-, or redirect examination, with motive and interest similar to those of the party against whom now offered.

908.045(2) (2) Statement of recent perception. A statement, not in response to the instigation of a person engaged in investigating, litigating, or settling a claim, which narrates, describes, or explains an event or condition recently perceived by the declarant, made in good faith, not in contemplation of pending or anticipated litigation in which the declarant was interested, and while the declarant’s recollection was clear.

908.045(3) (3) Statement under belief of impending death. A statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant’s impending death.

908.045(4) (4) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated.

908.045(5) (5) Statement of personal or family history of declarant. A statement concerning the declarant’s own birth, adoption, marriage, divorce, relationship by blood, adoption or marriage, ancestry, whether the person is a marital or nonmarital child, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated.

908.045(5m) (5m) Statement of personal or family history of person other than the declarant. A statement concerning the birth, adoption, marriage, divorce, relationship by blood, adoption or marriage, ancestry, whether the person is a marital or nonmarital child, or other similar fact of personal or family history and death of a person other than the declarant, if the declarant was related to the other person by blood, adoption or marriage or was so intimately associated with the other person’s family as to be likely to have accurate information concerning the matter declared.

908.045(6) (6) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness.

908.045 History History: Sup. Ct. Order, 59 Wis. 2d R1, R308 (1973); 1975 c. 94 s. 91 (12); 1975 c. 199; 1983 a. 447; 1991 a. 32; 1999 a. 85.

908.045 Annotation A good-faith effort to obtain a witness’s presence at trial is a prerequisite to finding that the witness is “unavailable” for purposes of invoking the hearsay exception respecting former testimony. La Barge v. State, 74 Wis. 2d 327, 246 N.W.2d 794 (1976).

908.045 Annotation The defendant’s right of confrontation was not violated by the admission at trial of preliminary examination testimony of a deceased witness when the defendant had an unlimited opportunity to cross-examine the witness and the testimony involved the same issues and parties as at trial. Nabbefeld v. State, 83 Wis. 2d 515, 266 N.W.2d 292 (1978).

908.045 Annotation A statement against penal interest may be admissible under sub. (4) if four factors indicating trustworthiness of the statement are present. Ryan v. State, 95 Wis. 2d 83, 289 N.W.2d 349 (Ct. App. 1980).

908.045 Annotation A finding of unavailability of a witness due to mental illness, made on the basis of a confused and stale record, deprived the defendant of the right to confront the witness. State v. Zellmer, 100 Wis. 2d 136, 301 N.W.2d 209 (1981).

908.045 Annotation Corroboration under sub. (4) must be sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true. State v. Anderson, 141 Wis. 2d 653, 416 N.W.2d 276 (1987).

908.045 Annotation Under the “totality of factors” test, statements by a seven-year-old sexual abuse victim to a social worker possessed sufficient guarantees of trustworthiness to be admissible under sub. (6) at a preliminary hearing. State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988).

908.045 Annotation The exception for a statement of recent perception under sub. (2) does not apply to the aural perception of an oral statement privately told to a person. State v. Stevens, 171 Wis. 2d 106, 490 N.W.2d 753 (Ct. App. 1992).

908.045 Annotation The exception under sub. (4) for a statement that makes the declarant an object of hatred, ridicule, or disgrace requires that the declarant have a personal interest in keeping the statement secret. State v. Stevens, 171 Wis. 2d 106, 490 N.W.2d 753 (Ct. App. 1992).

908.045 Annotation Discussing the similar motive and interest requirement of sub. (1). State v. Hickman, 182 Wis. 2d 318, 513 N.W.2d 657 (Ct. App. 1994).

908.045 Annotation The sub. (6) residual exception should be applied only to novel or unanticipated categories of hearsay. The testimony of a five-year-old girl against her mother fell within the sub. (6) exception when there were adequate assurances of trustworthiness. Requiring the girl to incriminate her mother at trial presented an exigency similar to the psychological scarring of a child victim. State v. Petrovic, 224 Wis. 2d 477, 592 N.W.2d 238 (Ct. App. 1999), 97-3403.

908.045 Annotation There are objective and subjective poles to the “social interest” exception under sub. (4) for statements that would subject the declarant to hatred, ridicule, or disgrace. The objective pole is the determination that the declarant actually faced a risk of hatred, ridicule, or disgrace. The subjective pole is the declarant’s appreciation of that risk. State v. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187, 00-0812. But see Murillo v. Frank, 402 F.3d 786 (2005).

908.045 Annotation If a hearsay statement falls within a firmly rooted hearsay exception, it is automatically admitted; such statements are reliable without cross-examination. Hearsay that is not within a firmly rooted exception requires particularized showings of trustworthiness to be admitted. The social interest exception under sub. (4) is not firmly rooted, but there were sufficient showings of trust worthiness in this case. State v. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187, 00-0812. But see Murillo v. Frank, 402 F.3d 786 (2005).

908.045 Annotation When ruling on a narrative’s admissibility, a court must determine the separate admissibility of each single declaration or remark, which should be interpreted within the context of the circumstances under which it was made to determine if that assertion is in fact sufficiently against interest. State v. Joyner, 2002 WI App 250, 258 Wis. 2d 249, 653 N.W.2d 290, 01-3049.

908.045 Annotation When a witness’s memory, credibility, or bias was not at issue at trial, the inability of the defendant to cross-examine the witness at the preliminary hearing with questions that went to memory, credibility, or bias did not present an unusual circumstance that undermined the reliability of the witness’s testimony. Admission of the unavailable witness’s preliminary hearing testimony did not violate the defendant’s constitutional right to confrontation. State v. Norman, 2003 WI 72, 262 Wis. 2d 506, 664 N.W.2d 97, 01-3303.

908.045 Annotation The recent perception exception under sub. (2) is intended to allow more time between the observation of the event and the statement, as opposed to the exceptions for present sense impression and excited utterances. In analyzing the recency of an event under the exception, the mere passage of time, while important, is not controlling but depends on the particular circumstances of the case. State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485, 01-1476.

908.045 Annotation Neither sub. (4) nor Anderson, 141 Wis. 2d 653 (1987), imposes a fixed requirement of corroboration that is independent of the declarant’s self-inculpatory statement. That a declarant’s confession is repeated to more than one witness may well be sufficient, in light of all the facts and circumstances, to permit a reasonable person to conclude that it could be true, even in the absence of corroboration that is independent of the confession itself. State v. Guerard, 2004 WI 85, 273 Wis. 2d 250, 682 N.W.2d 12, 02-2404.

908.045 Annotation Sub. (2) is not a firmly rooted hearsay exception. It lacks historical longevity and enjoys very limited acceptance. However, hearsay admitted under sub. (2) may satisfy the confrontation clause so long as the evidence bears particularized guarantees of trustworthiness. State v. Manuel, 2005 WI 75, 281 Wis. 2d 554, 697 N.W.2d 811, 03-0113.

908.045 Annotation The admission of a dying declaration statement does not violate the constitutional right to confront witnesses. The confrontation right does not apply when an exception to that right was recognized at common law at the time of the founding, which the dying declaration exception was. The fairest way to resolve the tension between the state’s interest in presenting a dying declaration and concerns about its potential unreliability is to freely permit the aggressive impeachment of a dying declaration on any grounds that may be relevant in a particular case. State v. Beauchamp, 2011 WI 27, 333 Wis. 2d 1, 796 N.W.2d 780, 09-0806.

908.045 Annotation The sub. (4) declaration against social interest exception is an unusual exception to the hearsay doctrine and cannot support the use of confessions and affidavits when the long-established, and better supported, penal-interest exception does not. Murillo v. Frank, 402 F.3d 786 (2005).

908.045 Annotation The Corroboration Requirement (or Lack Thereof) for Statements Against Penal Interest in Wisconsin: State v. Anderson. Best. 1989 WLR 403.

908.05 908.05 Hearsay within hearsay. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in this chapter.

908.05 History History: Sup. Ct. Order, 59 Wis. 2d R1, R323 (1973).

908.05 Annotation The admission of double hearsay did not violate the defendant’s right to confront witnesses. State v. Lenarchick, 74 Wis. 2d 425, 247 N.W.2d 80 (1976).

908.05 Annotation Evidence of 911 calls, including tapes and transcripts of the calls, is not inadmissible hearsay. Admission does not violate the right to confront witnesses. State v. Ballos, 230 Wis. 2d 495, 602 N.W.2d 117 (Ct. App. 1999), 98-1905.

908.05 Annotation Before entertaining the question of whether proffered evidence is hearsay or falls under a hearsay exception, courts must engage in an analysis of whether the evidence is relevant. In this case, because testimony as to the victim’s character and personal history was not relevant to the defendant’s guilt or innocence, testimony on those issues was not admissible regardless of the applicability of any hearsay exceptions. State v. Jacobs, 2012 WI App 104, 344 Wis. 2d 142, 822 N.W.2d 885, 11-1852.

908.06 908.06 Attacking and supporting credibility of declarant. When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

908.06 History History: Sup. Ct. Order, 59 Wis. 2d R1, R325 (1973); 1991 a. 32.

908.08 908.08 Audiovisual recordings of statements of children.

908.08(1) (1) In any criminal trial or hearing, juvenile fact-finding hearing under s. 48.31 or 938.31 or revocation hearing under s. 302.113 (9) (am), 302.114 (9) (am), 304.06 (3), or 973.10 (2), the court or hearing examiner may admit into evidence the audiovisual recording of an oral statement of a child who is available to testify, as provided in this section.

908.08(2) (2) 

908.08(2)(a) (a) Not less than 10 days before the trial or hearing, or such later time as the court or hearing examiner permits upon cause shown, the party offering the statement shall file with the court or hearing officer an offer of proof showing the caption of the case, the name and present age of the child who has given the statement, the date, time and place of the statement and the name and business address of the camera operator. That party shall give notice of the offer of proof to all other parties, including notice of reasonable opportunity for them to view the statement before the hearing under par. (b).

908.08(2)(b) (b) Before the trial or hearing in which the statement is offered and upon notice to all parties, the court or hearing examiner shall conduct a hearing on the statement’s admissibility. At or before the hearing, the court shall view the statement. At the hearing, the court or hearing examiner shall rule on objections to the statement’s admissibility in whole or in part. If the trial is to be tried by a jury, the court shall enter an order for editing as provided in s. 885.44 (12).

908.08(3) (3) The court or hearing examiner shall admit the recording upon finding all of the following:

908.08(3)(a) (a) That the trial or hearing in which the recording is offered will commence:

908.08(3)(a)1. 1. Before the child’s 12th birthday; or

908.08(3)(a)2. 2. Before the child’s 16th birthday and the interests of justice warrant its admission under sub. (4).

908.08(3)(b) (b) That the recording is accurate and free from excision, alteration and visual or audio distortion.

908.08(3)(c) (c) That the child’s statement was made upon oath or affirmation or, if the child’s developmental level is inappropriate for the administration of an oath or affirmation in the usual form, upon the child’s understanding that false statements are punishable and of the importance of telling the truth.

908.08(3)(d) (d) That the time, content and circumstances of the statement provide indicia of its trustworthiness.

908.08(3)(e) (e) That admission of the statement will not unfairly surprise any party or deprive any party of a fair opportunity to meet allegations made in the statement.

908.08(4) (4) In determining whether the interests of justice warrant the admission of an audiovisual recording of a statement of a child who is at least 12 years of age but younger than 16 years of age, among the factors which the court or hearing examiner may consider are any of the following:

908.08(4)(a) (a) The child’s chronological age, level of development and capacity to comprehend the significance of the events and to verbalize about them.

908.08(4)(b) (b) The child’s general physical and mental health.

908.08(4)(c) (c) Whether the events about which the child’s statement is made constituted criminal or antisocial conduct against the child or a person with whom the child had a close emotional relationship and, if the conduct constituted a battery or a sexual assault, its duration and the extent of physical or emotional injury thereby caused.

908.08(4)(d) (d) The child’s custodial situation and the attitude of other household members to the events about which the child’s statement is made and to the underlying proceeding.

908.08(4)(e) (e) The child’s familial or emotional relationship to those involved in the underlying proceeding.

908.08(4)(f) (f) The child’s behavior at or reaction to previous interviews concerning the events involved.

908.08(4)(g) (g) Whether the child blames himself or herself for the events involved or has ever been told by any person not to disclose them; whether the child’s prior reports to associates or authorities of the events have been disbelieved or not acted upon; and the child’s subjective belief regarding what consequences to himself or herself, or persons with whom the child has a close emotional relationship, will ensue from providing testimony.

908.08(4)(h) (h) Whether the child manifests or has manifested symptoms associated with posttraumatic stress disorder or other mental disorders, including, without limitation, reexperiencing the events, fear of their repetition, withdrawal, regression, guilt, anxiety, stress, nightmares, enuresis, lack of self-esteem, mood changes, compulsive behaviors, school problems, delinquent or antisocial behavior, phobias or changes in interpersonal relationships.

908.08(4)(i) (i) Whether admission of the recording would reduce the mental or emotional strain of testifying or reduce the number of times the child will be required to testify.

908.08(5) (5) 

908.08(5)(a) (a) If the court or hearing examiner admits a recorded statement under this section, the party who has offered the statement into evidence may nonetheless call the child to testify immediately after the statement is shown to the trier of fact. Except as provided in par. (b), if that party does not call the child, the court or hearing examiner, upon request by any other party, shall order that the child be produced immediately following the showing of the statement to the trier of fact for cross-examination.

908.08(5)(am) (am) The testimony of a child under par. (a) may be taken in accordance with s. 972.11 (2m), if applicable.

908.08(5)(b) (b) If a recorded statement under this section is shown at a preliminary examination under s. 970.03 and the party who offers the statement does not call the child to testify, the court may not order under par. (a) that the child be produced for cross-examination at the preliminary examination.

908.08(6) (6) Recorded oral statements of children under this section in the possession, custody or control of the state are discoverable under ss. 48.293 (3), 304.06 (3d), 971.23 (1) (e) and 973.10 (2g).

908.08(7) (7) At a trial or hearing under sub. (1), a court or a hearing examiner may also admit into evidence an audiovisual recording of an oral statement of a child that is hearsay and is admissible under this chapter as an exception to the hearsay rule.

908.08 History History: 1985 a. 262; 1989 a. 31; 1993 a. 98; 1995 a. 77, 387; 1997 a. 319; 2001 a. 109; 2005 a. 42.